92 Decision Citation: BVA 92-09213
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-44 304 ) DATE
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THE ISSUE
Entitlement to VA compensation when the estate of an
incompetent veteran with no dependents exceeds $25,000.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Associate Counsel
INTRODUCTION
The veteran had in excess of nine years' active service,
retiring from the Army in 1953 due to permanent disability.
This matter came before the Board on appeal from a January
1991 decision by the Montgomery, Alabama, Regional Office
(hereinafter RO). A notice of disagreement with that
decision was received in April 1991 and a statement of the
case was issued in May 1991. A substantive appeal was
received in July 1991 and a hearing at which the appellant
testified was conducted at the RO that same month. The case
was received and docketed at the Board in October 1991,
after which it was referred to the service organization
which has represented the appellant throughout this appeal,
the Disabled American Veterans. A representative from that
organization submitted additional written arguments in
January 1992.
On January 31, 1992, the United States District Court for
the Southern District of New York granted plaintiff's motion
for a preliminary injunction to prevent the Department of
Veterans Affairs from "applying or enforcing Section 8001 of
the Omnibus Budget Reconciliation Act of 1990, codified at
38 U.S.C. § 3205" (renumbered § 5505 in 1991) in Disabled
American Veterans v. United States Department of Veterans
Affairs, C.A. No. 91 Civ. 1413 (SWK) (S.D.N.Y.), a
class-action suit. The parties subsequently stipulated in
February 1992 that the Board of Veterans' Appeals would
suspend the adjudication of Constitutional issues in appeals
concerning the application of 38 U.S.C. § 5505, but would
not suspend the adjudication of non-Constitutional issues to
the application of 38 U.S.C. § 5505 brought by class members
before the Board, in appeals which were pending or which
were filed after the date of the stipulation and order. The
stipulation and order were signed by the Court on
February 24, 1992; however, the preliminary injunction was
subsequently vacated.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant essentially contends that terminating the
benefits previously granted to the veteran, for whom she is
guardian for VA purposes, is unfair and that the law
authorizing the termination in these circumstances violates
the Constitution of the United States and should be repealed.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim
is well grounded.
FINDINGS OF FACT
1. The veteran is incompetent, without a wife, child or
dependent parent.
2. The estate of the veteran is valued in excess of $25,000.
CONCLUSION OF LAW
Subject to the future determination of the Federal courts
with respect to the Constitutional challenges to 38 U.S.C.
§ 5505, we conclude in the interim that the appellant has
not submitted evidence of a well-grounded claim (38 U.S.C.
§§ 5107, 5505).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's essential contention, with respect to the
termination of benefits at issue, is that the statute which
authorized such termination is unconstitutional. She has
not argued that the facts found by the RO are inaccurate.
The Board is bound by the law as enacted by the Congress and
we are without authority to decide constitutional issues.
38 U.S.C. § 5505 states that payment of compensation may not
be paid to any veteran without spouse, child or dependent
parent who is rated incompetent and who has an estate valued
in excess of $25,000. In this case, the veteran has been
rated incompetent for many years, his estate is valued in
excess of $25,000 and he has no dependents as stated in the
law. As these facts are not in dispute and were reaffirmed
as true by the appellant in her recent sworn testimony,
aside from the Constitutional question, the appellant has
not presented a colorable question of error of law or fact.
Therefore, we conclude that the claim is not well grounded
and there is no further duty to assist the appellant in
developing the claim. 38 U.S.C. § 5107.
We note that the appellant's representative has raised a
question with respect to ambiguity surrounding the
interpretation of "38 U.S.C. 3.302(b)(1a)(d) and 1-7" as it
relates to this appeal. However, we are unaware of any law
or regulation corresponding to that citation and are
therefore unable to offer a cogent response to this question.
ORDER
The appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) D. W. DATLOW, M.D.
C. W. SYMANSKI
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.